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The final criteria for contract formation, the intent to create legal
relations, is also easily satisfied under most circumstances. Indeed intention is
automatically presumed in a commercial transaction with an explicit
contract, and the onus of proving otherwise “is on the party who asserts that no
legal effect is intended, and the onus is a heavy one.”
36
Beyond the procedures already discussed to ensure intent (e.g., a
welldefined offer/acceptance process and the ceremonial use of consideration),
on-line merchants might consider another device to avoid disputes —
a ‘last
chance’ screen. After proceeding through the sequence of Web pages concerning
the transaction, the consumer should be presented with a ‘last chance’ screen that
includes all of the major terms (digital service requested, price total, credit card
number, etc.). At this point, the consumer either submits the offer or cancels it
without any legal implications. Establishing this purchasing framework will
prevent misunderstandings of meaning and intention, and lead to greater legal
enforceability as well.
Presentation of terms
One final concern in the contractual process is
the presentation of
contractual terms.
37
Most consumer contracts do not form after prolonged
discussions and negotiations over specific terms and clauses. Rather, they are
generally standard form contracts, pre-drafted by the merchant to protect his/
her own interests. The consumer receives the terms only at the time of
purchase.
However, the terms and conditions in a standard form contract will have
no effect unless the customer is given ‘notice’
of them before the contract is
formed.
38
For example, in Olley v Marlborough Court Ltd, the court held that a
contract for a hotel room, having been agreed to and signed at the hotel’s
reception desk, was not subject to terms found on a notice inside the
bedroom.
39
As suggested by Lord Denning MR in Thornton v Shoe Lane
Parking, “the customer is bound by the . . . conditions if he knows that the